Ommissions On Soc

[free_spirit_etc]

http://www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch05.doc

d. Matters Not to Be Disclosed in an SOC Do not include matters in an SOC of a sensitive nature that would be injurious to the physical or mental health of the appellant, including

• matters considered by responsible medical authority to be injurious to the appellant’s health

• references to

 a prognosis of “poor” or “terminal,” or

 conditions of misconduct, unless the specific misconduct is relevant to the issue, or

• discussions of evidence in a way that might provoke feelings of hostility, resentment, or rejection on the part of the appellant or his/her family.

19. Preparing an SOC, Continued

e. Disclosing Information to the Appellant’s Representative All matters can be disclosed to the appellant’s designated representative unless disclosure to the representative would be as harmful as if made to the appellant. Therefore, in some cases, two different versions of the SOC may be prepared when it is permissible to furnish full information to the representative.

Use the table below when disclosing information to the appellant’s representative.

If the appellant … And the … Then …

has a representative matters omitted from the appellant’s SOC can be released to his/her representative • prepare a separate SOC for the appellant and omit matters not to be disclosed

• furnish copies of the edited SOC to both the representative and the appellant, and

• annotate the representative’s copy and the original SOC (full statement) to show what portions were deleted from the copy sent to the appellant.

Note: Annotate the statements to the effect that the material omitted from the appellant’s SOC is not to be revealed to him/her.

19. Preparing an SOC, Continued

e. Disclosing Information to the Appellant’s Representative (continued)

If the appellant … And the … Then …

matters omitted from the appellant’s SOC cannot be released to his/her representative, such as information that might provoke feelings of hostility, resentment, or rejection on the part of the representative • prepare a modified statement omitting these matters

• furnish copies of the edited SOC to the appellant and his/her representative, and

• annotate the original SOC to show that matters not to be disclosed to the appellant or his/her representative were omitted from their copies.

does not have a representative SOC contains matters not to be disclosed to the appellant • eliminate those specific references from the SOC that will be furnished to the appellant, and

• annotate the original SOC (full statement) to show what portions were deleted from the copy sent to the appellant.

[Berta]

That is an interesting reg and I never knew this before-thanks!

One thing about a SOC - the veteran can hold them to it.

An old SOC regarding an older claim could contain medical statements that are probative to a newer claim.

Been there done that- dont throw anything from the VA away!

In spite of what my POA said, I have a 2005 SOC that supports the fact that my medical evidence from 2 IMOs was not addressed.

The vet rep insisted he checked the c file to see that these IMOs were there and then fought for an award with the DRO on the basis of the IMOs as well as the additional medical evidence.

I got an SOC that said none of my evidence raised to the level of Benefit of Doubt-and they only listed "letters" from the claimant and internet print outs- no IMOs.

The meeting did trigger a VA medical opinion that it appears in the SOC was at my POA's request-a medical opinion that did not consider the IMOs either-so I got another IMO.

In past SOCs I got in the late 1990s, VA "experts" gave support for an additional claim that the VA itself said they were re-opening in my behalf.

One of those VA docs who went against me in the 1990s, gave me support by phone for my newer claim but felt-since I knocked down 2 of his opinions already- he would have no weight with VA on the newer claim-if he rendered a formal opinion. Yet- his statements in those old SOCs (manipulated from his actual report)

do support now an additional claim I filed in 2004, and even my main AO claim.

It is odd that my responses to SOCs in the past were always addressed by the VA yet these days- they have all been ignored. In my remand request to the BVA I highlighted a brief example of pertinent evidence they never addressed, as well as my IMos.I think that letter, in my c file, back at the RO with a rater since last week-will surely prompt them to address the IMos and at least this one piece of evidence-if they overlook the rest.

An SOC is their argument and why they are against the claim.

It contains the keys to what the veteran needs to succeed.

[john999]

Berta

If you have a rating decision that says under diagnosis PTSD among other things would that mean that the VA is stuck with that diagnosis? I was diagnosed with PTSD and panic disorder but was rated 70% for schizophrenia. You know the way the VA may diagnose you with 5 mental disorders but only rates you for the most severe. I was just wondering since they put this in writing but never have mentioned in since even on the Blue Sheet. The VA incorporated my IMO doctor's dianosis into the rating decision right from the IMO report. They never made a distinction between the doctor's dianosis and the VA diangosis.

[free_spirit_etc]

I am not sure if thsi would apply to your claim -- but I ran across it and figured I would send it on:

http://www.va.gov/vetapp98/files3/9824107.txt

Citation Nr: 9824107

Decision Date: 08/10/98 Archive Date: 07/27/01

DOCKET NO. 97-04 703 ) DATE

)

)

On appeal from the

Department of Veterans Affairs (VA) Regional Office (RO) in

Roanoke, Virginia

THE ISSUES

1. Whether there was clear and unmistakable error (CUE) in

an RO rating decision of January 19, 1977, in failing to

grant service connection for schizophrenia.

2. Whether new and material evidence has been presented to

reopen a claim for service connection for an acquired

psychiatric disability.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of

the United States

ATTORNEY FOR THE BOARD

K. Ehrman, Counsel

INTRODUCTION

The appellant had active service from June 1976 to November

1976

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from RO rating decisions dated in March

1996 and July 1996 which found, respectively, that new and

material evidence had not been received to reopen a claim for

service connection for a nervous condition, and found no CUE

in the January 1977 RO rating decision which denied a claim

for service connection for schizophrenia.

REMAND

The appellant and her representative assert that the January

1977 VA RO rating decision failed to apply or give any

consideration to the application of the presumption of sound

condition, a regulatory and evidentiary presumption of law

found at 38 U.S.C.A. § 1111 (West 1991), and that service

connection for an acquired psychiatric disability is thereby

warranted.

A March 1998 report of contact evidences the additional

argument of the veteran's representative that the January

1977 RO rating decision failed to properly apply or give any

consideration to 38 C.F.R. § 3.1(m) (1997), and that this

failure constitutes CUE as well. It is argued that under

§ 3.1(m) service department (and apparently Medical

Evaluation Board (MEB)) determinations that injury, disease,

or death occurred in the line of duty are binding on VA, and

that in the case presently on appeal, the VA is bound to the

October 1976 MEB finding that the appellant's schizophrenia

originated in July 1976, that it had been incurred in the

line of duty, that the cause was incident to service, and

that schizophrenia had not existed prior to service.

Accordingly, the Board finds that the appellant's procedural

rights in this matter may have been compromised under Bernard

v. Brown, 4 Vet.App. 384 (1993), as the August 1996 statement

of the case (SOC) fails to make any reference to the above

referenced pertinent law and regulations--38 U.S.C.A. § 1111

(West 1991) and 38 C.F.R. § 3.1(m) (1997).

Additional failures are also found. The Board similarly

notes that further development is needed of the claim of new

and material evidence to reopen a claim for service

connection for schizophrenia, under existing decisional

precedent of the United States Court of Veterans' Appeals

(Court). In Akins v. Derwinski, 1 Vet.App. 228 (1991), the

Court made the following observation with regard to the

failure to apply a certain regulatory presumption as new and

material evidence to reopen a claim for service connection:

[T]he factual predicate demonstrated by

the presumptions have [sic] an important

evidentiary value and, to that extent,

are the functional equivalent of

evidence. [Where] it is clear that this

evidentiary presumption was not

previously considered and [where] it

bears directly and substantially on the

issue [on appeal], it provides a basis

for reopening the claim.

Akins, 1 Vet.App. at 230. (Emphasis added).

The language of the regulation dictate

that once the presumption [is] in place,

the burden shift to the government to

offer clear and unmistakable evidence to

rebut the presumption of service

connection.

Akins, 1 Vet.App. at 232.

Accordingly, with regard to both claims on appeal, the Board

finds that the appellant's procedural rights may have been

compromised under Bernard, Supra., as the August 1996

statement of the case (SOC) fails to make any reference to

all pertinent law and regulations--including 38 U.S.C.A.

§ 1111; 38 C.F.R. § 3.1(m) (1997); and, Akins, Supra. As

such, the veteran has not been provided notice of all

applicable law and regulations governing both of her claims

on appeal. That is, the SOC does not specifically address

the issues on appeal as asserted, with reference and citation

to all applicable law and regulations regarding the

presumption of sound condition and CUE, the definition of

'line of duty' as defined in § 3.1(m), and Akins, Supra.,

regarding the submission of new and material evidence to

include the application of the presumption of sound

condition.

It must also be noted that service medical records, which

date from June 30, 1976--the date of the veteran's induction

into service--show that she was initially hospitalized in

July 1976 for schizophrenia, manifested in parted by

increased motor activity, after one week of basic training.

A psychiatric history was taken at that time. As such,

consideration should be given to the application of 38 C.F.R.

§ 3.303© (1997), wherein preservice origin can be shown

either by symptoms of chronic disease from date of

enlistment, or so close thereto that the disease could not

have originated in so short a period, or, as with mental

disorders characterized by developmental defects or

pathological trends in the personality structure manifested

by a lifelong pattern of action or behavior, chronic

psychoneurosis of long duration, or other psychiatric

symptomatology shown to have existed prior to service with

the same manifestations during service, which were the basis

of the service diagnosis.

As the August 1996 SOC is silent as to 38 C.F.R. § 3.303©,

the Board finds that Bernard, Supra, is again indicated, and

that on Remand, and upon the completion of the below listed

development, the claims on appeal should be readjudicated,

with a supplemental statement of the case (SSOC) to include

citation to and consideration of all applicable law and

regulations, including 38 U.S.C.A. § 1111; 38 C.F.R.

§§ 3.1(m) and 3.303© (1997); as well as Akins, Supra.

The duty of the VA is to assist claimants in the development

of facts pertinent to their claims, as set forth in

38 U.S.C.A. § 5107 (West 1991), and 38 C.F.R. §§ 3.103 and

3.159 (1997) require that the VA accomplish additional

development of the record if the record currently before it is

inadequate. Littke v. Derwinski, 1 Vet.App. 90 (1990). In

view of the above, this case is REMANDED for the following:

1. The RO should contact the veteran and

request that she submit the names,

addresses and approximate dates of

treatment of all private or VA

psychiatric care providers who treated

her for any psychiatric or mental illness

both prior to and since service,

including treatment from July 1976 to the

present, if not already of record. After

securing the necessary release(s), the RO

should obtain copies of any additional

records, if they are not already in the

claims folder, including records from

"Riverside Hospital" and the VA Medical

Centers in Salem, Virginia, and Hampton,

Virginia, as well as any other VA medical

center identified by the veteran, dated

from July 1976 to the present.

2. The RO should readjudicate the issues

of whether there was clear and

unmistakable error in a rating decision

of January 1977 in failing to grant

service connection for schizophrenia and

whether new and material evidence has

been presented to reopen a claim for

service connection for an acquired

psychiatric disability, with specific

reference to, and consideration and

application of 38 U.S.C.A. § 1111 (West

1991); 38 C.F.R. §§ 3.1(m) and 3.303©

(1997); and Akins, Supra.

If the decision, in whole or in part,

remains adverse to the veteran, she and

her representative should be provided a

SSOC, to include all pertinent law and

regulations regarding CUE and new and

material evidence to reopen a claim,

including 38 U.S.C.A. § 1111 (West 1991);

38 C.F.R. §§ 3.1(m) and 3.303© (1997);

and Akins, Supra., with an opportunity to

respond thereto. Evidence recently

obtained and not previously considered

must be reviewed.

Berta

If you have a rating decision that says under diagnosis PTSD among other things would that mean that the VA is stuck with that diagnosis? I was diagnosed with PTSD and panic disorder but was rated 70% for schizophrenia. You know the way the VA may diagnose you with 5 mental disorders but only rates you for the most severe. I was just wondering since they put this in writing but never have mentioned in since even on the Blue Sheet. The VA incorporated my IMO doctor's dianosis into the rating decision right from the IMO report. They never made a distinction between the doctor's dianosis and the VA diangosis.

[free_spirit_etc]

Yeah. I am wondering how you can be given due process if they don't actually have to give you your entire SOC if someone determines it may harm or upset you. I guess, maybe if you think that has happened you would have to get an agent who would be allowed access to the entire SOC.

It seems like they woiuld AT LEAST have to inform you that you did not get the whole report.

I agree - save everything forever. I am amazed at all the errors in my husband's file.

Free

That is an interesting reg and I never knew this before-thanks!

One thing about a SOC - the veteran can hold them to it.

An old SOC regarding an older claim could contain medical statements that are probative to a newer claim.

Been there done that- dont throw anything from the VA away!

In spite of what my POA said, I have a 2005 SOC that supports the fact that my medical evidence from 2 IMOs was not addressed.

The vet rep insisted he checked the c file to see that these IMOs were there and then fought for an award with the DRO on the basis of the IMOs as well as the additional medical evidence.

I got an SOC that said none of my evidence raised to the level of Benefit of Doubt-and they only listed "letters" from the claimant and internet print outs- no IMOs.

The meeting did trigger a VA medical opinion that it appears in the SOC was at my POA's request-a medical opinion that did not consider the IMOs either-so I got another IMO.

In past SOCs I got in the late 1990s, VA "experts" gave support for an additional claim that the VA itself said they were re-opening in my behalf.

One of those VA docs who went against me in the 1990s, gave me support by phone for my newer claim but felt-since I knocked down 2 of his opinions already- he would have no weight with VA on the newer claim-if he rendered a formal opinion. Yet- his statements in those old SOCs (manipulated from his actual report)

do support now an additional claim I filed in 2004, and even my main AO claim.

It is odd that my responses to SOCs in the past were always addressed by the VA yet these days- they have all been ignored. In my remand request to the BVA I highlighted a brief example of pertinent evidence they never addressed, as well as my IMos.I think that letter, in my c file, back at the RO with a rater since last week-will surely prompt them to address the IMos and at least this one piece of evidence-if they overlook the rest.

An SOC is their argument and why they are against the claim.

It contains the keys to what the veteran needs to succeed.

[john999]

Free Spirit

I don't think it applies because I was service connected for schizophrenia but the other mental conditions were included in the rating decision but were not given individual ratings. Vike17 knows what I am talking about with the VA rating system for mental disorders. It does not really matter since the rating is what counts and not diagnosis. 100% is 100% but if for mental condition you can't work even if you are schedular.

[Josephine]

When I first saw this posted, I thought sure that it was my claim. It sounds like something from the Salem Medical Center.

By the way, how do you guys know what they are talking about, when you are finished reading the cases?

I try, but I don't understand half of what I read.

Any help would be appreciated.

Josephine

Edited November 10, 2006 by Josephine